Academy justice was tilted toward women

EARL KELLY, Staff Writer

In an apparent attempt to curb sexual abuse, the Naval Academy created a double standard that punished male midshipmen harsher than females from 2001 to 2006, according to reams of documents obtained by The Capital.

As revealed in about 3,000 pages of Navy and Naval Academy documents obtained under the Freedom of Information Act covering the five-year period, female accusers - and sometimes their witnesses - generally received immunity for conduct violations uncovered during investigations of the alleged sexual abuse.

But male midshipmen accused of sexual abuse, even when the evidence against them was weak, were likely to be dismissed for the same type of offense for which a female mid received immunity, the documents show.

Forgiven offenses typically included underage drinking, drinking in the dorm, binge or "extreme" drinking, possessing a fake ID, having consensual sex in the dorm or being absent from duty without authorization.

As a result, some male midshipmen were driven from the academy for being intoxicated and foolish, while female mids who broke many of the same rules were allowed to continue with their careers.

The high-profile case that raised suspicions about a double standard involved Navy quarterback Lamar S. Owens Jr., who was booted from the academy in 2007 and charged more than $90,000 for his education. His accuser, despite a string of conduct violations, was allowed to graduate and received a commission.

Most accusations against men at the Naval Academy were resolved behind closed doors. And most of the dismissals took place under then-Superintendent Vice Adm. Rodney P. Rempt.

There were 37 cases during that five-year period in which alleged victims elected to cooperate with investigators and academy officials and the accused were identified, the documents show.

These were mostly "he-said, she-said" cases. But in 21 of the 37 cases, or 57 percent, the male was dismissed from the military, often with the case being handled administratively and never going to a court-martial, according to documents.

When cases were slated for a trial, the male mids were always separated from the military, often before trial.

Some academy graduates have expressed outrage over the double standard of justice.

"The best defense for a woman is to claim she is a victim; it happens all the time," said defense attorney Charles W. Gittins, a military law expert from Virginia and a 1979 graduate of the Naval Academy.

Gittins said granting widespread immunity began when Rempt was superintendent, from August 2003 to June 2007.

"I am certain that the immunity was a Rempt thing," Gittins said. "There is no precedent for such a blanket grant of immunity in the Judge Advocate General Manual, the Uniform Code of Military Justice, or the Manual for Courts-martial. What Rempt did was create blanket immunity in order to 'purchase' the testimony of the female."

Rempt did not return repeated calls for comment.

Academy officials declined to say if there was an increase in immunity being granted during Rempt's tenure, but commented on current practice.

"Immunity is granted only on a case-by-case basis in unique circumstances where a witness is unwilling to come forward, and in the case of courts martial, after consultation with the presiding judge, attorneys, and convening authority," academy spokesman Cmdr. Joe Carpenter said. "It is considered in those circumstances when information is necessary and a witness is unwilling to risk self-incrimination."

Academy officials said that under the current commander, male and female mids are being disciplined in roughly equal numbers.

Superintendent Vice Adm. Jeffrey Fowler, who assumed the top post in June 2007, declined to be interviewed for this story. The academy provided figures, however, to show that males and females were being treated about the same under the new regime.

In underage drinking cases from July 2007 to April 2009, male mids were accused in 82 percent of the cases, and females were involved in 18 percent of the cases. These proportions are roughly the same as the gender breakdown within the Brigade of Midshipmen, according to academy officials.

Overall, males were separated in 52 percent of conduct cases involving males, and retained in 48 percent; females were separated in 50 percent of cases involving women, and retained in 50 percent.

In sexual misconduct and harassment cases during roughly the same time frame, males were involved in 67 percent of the cases in which punishment resulted, while females made up 33 percent.

Even if Rempt was more lenient on alleged victims of sexual abuse than previous and subsequent superintendents, the use of immunity in applying military justice has its defenders.

Without commenting on the cases handled under Rempt, a Navy Judge Advocate General lawyer who asked not to be named said the purpose of military law is to preserve the "good order and discipline" of the military, not to ensure that justice is done in each individual case.

And a male Marine Corps officer who graduated during Rempt's administration and has led combat troops during multiple deployments, defended the admiral's practices - to a point.

"Leadership and justice are not always the same thing," said the officer, who asked for anonymity to protect his career. "A military leader's main goal is to accomplish his mission and ensure the welfare of his subordinates .... It is acceptable and even necessary for a leader to be unfair if it helps accomplish the mission."

However, the young officer noted "there is clearly an acknowledged double standard in the entire military as far as women are concerned. I don't like it, but I can't really see a way around it. I would say that the Naval Academy has been more proactive in trying to prevent sexual assault than any other organization in the military that I know of."

Policy origins

Rempt explained his immunity policy in a written report to the vice chief of Naval operations on Oct. 2, 2003, according to the documents.

"In order to encourage reporting and to minimize the psychological damage of re-victimization, the Naval Academy's Administrative Conduct System will generally not be used to discipline the victims of a sexual assault," Rempt wrote.

But he conceded there was some potential danger in the practice.

"However, since these midshipmen are prospective commissioned officers and future leaders of our Navy and Marine Corps, it is important that we do not ignore violations of the regulations or issues that could affect aptitude for commissioning as if they never occurred."

Women were to undergo counseling or "remediation training" for offenses such as underage drinking or having consensual sex in Bancroft Hall, the academy dormitory, that surfaced during investigation of sex abuse, but they would be allowed to graduate and receive commissions, Rempt said.

Men, on the other hand, could be booted out for the same conduct violations, and if they were juniors or seniors, they could be required to repay the government for their educations.

In the cases found within the documents, those assessments ran between $76,000 and $136,000.

U.S. Sen. Barbara Mikulski, D-Md., a leading women's-rights advocate who serves on the academy's civilian oversight board and on the Senate's subcommittee that controls defense spending, declined to be interviewed for this story, but responded with a written comment.

"When it comes to sexual assault, I've always sent two clear messages to the military," Mikulski wrote. "There should be a zero tolerance policy for sexual assault. Secondly, in cases where assaults do occur, victims should be able to report the assaults and seek treatment in an atmosphere free of fear of reprisals."

The numbers

There were 49 reported cases of midshipman sexually assaulting other mids between the academic years ending in 2001 and 2006, according to the documents.

In two cases, the victims and their abusers were males, and the abusers were dismissed from the service.

In 20 of these 49 cases, the alleged victims filed "restricted" complaints, meaning they could receive medical services or counseling, but not have to pursue the case.

Nine of the remaining 29 cases went to trial, with two of the men being convicted and one being referred for additional prosecution.

Of the six mids who were acquitted in the legal system, all were dismissed under the academy's administrative conduct system.

Twenty cases were handled through the conduct system. Of these cases, 12 ended with the male mid being expelled or, in military terminology, "separated" from the service.

The documents revealed only one case where the accused and accuser were held responsible to the same degree.

In a 2002 case, the commandant concluded there had not been an assault, but that the couple had broken academy rules by having consensual sex in the Bancroft Hall.

The commandant recommended both mids be permanently expelled, but the superintendent overrode the recommendation and allowed both to transfer to the fleet for 10 months, with the understanding they could reapply to the Naval Academy after that time.

The record is incomplete as to what became of those two mids, but if the case had occurred a year later, after Rempt assumed command, it probably would have had a different outcome.

Gittins, the attorney who graduated from the academy in 1979, said he continues to tell male mids to be wary.

"I talk to young men who are going to the Naval Academy, and I tell them not to go near the women, to stay away .... The only thing that can happen is bad," he said. "It is terrible, but it has become predictable."

Fueled by alcohol

Judgment muddled by alcohol was a common thread in many of the sex-abuse cases described in the documents.

One of the earliest cases of sexual assault to surface under Rempt's administration involved a drunken spree in Mexico.

College rankings often list the Naval Academy as one of the driest colleges in the nation, right up there with Brigham Young University, the Morman bastion in Utah. But get beyond the academy's regulation book, and there is another story.

"You have so much on your plate, come the weekend, you want to just cut loose," a midshipman said recently in an interview for a Commissioning Week story. "But you are not supposed to be a college student, you are always supposed to be a midshipman."

In one classic example of the dangers of alcohol, an alleged victim of sexual assault told academy officials she and her friends - male and female - planned a spring break in March 2003 in Cancun, Mexico, just so they could drink, the documents show.

The woman told investigators they made travel arrangements through a travel office at the academy.

"This locale was desired due to the 18-year-old drinking age," the alleged victim told an investigator. "There were many midshipmen on spring break in Cancun."

The other women backed out and didn't go, but she did, sharing a hotel bed with the male she felt closest to, records show.

On the night of the alleged assault, the female downed "pre-dinner drinks," followed by two daiquiris and "several shots," which she capped off with "five (tequila) shots right before I left the club," according to her testimony.

"I consumed 10 or 11 shots of alcoholic drinks in all," she testified during the investigation. "I realize now that this was a mistake in judgment."

The female mid awoke a little past 3 a.m. to find the male freshman rubbing her hand against his genitals. The male mid also had been drinking, but the amount was not clear from the record - he said he had consumed a lot. But academy officials said he was merely trying to claim he was intoxicated to cover up his misconduct.

"Although (the victim) placed herself in a vulnerable position, the sharing of a hotel bed with a member of the opposite sex does not give implied permission for sexual advances," the investigating officer concluded in his report.

There is no record of the female freshman being disciplined, even though academy rules mandate that plebes are never to drink if they are under age 21.

The male was charged with four counts of indecent assault in July 2003, and resigned from the academy before the case went to a court-martial.

Climate change?

It is unclear whether granting alleged victims of sexual misconduct automatic immunity remains the policy under Fowler. The documents obtained by the newspaper applied only to cases resolved before Fowler arrived at the academy in June 2007.

Fowler and Commandant Navy Capt. Matthew L. Klunder declined to be interviewed, but their spokesman emphasized midshipmen are treated equally regardless of gender.

"In adjudicating suspected conduct and honor cases, there is no disparity between male and female midshipmen," Carpenter said. "An analysis of recent misconduct cases confirmed that male and female midshipmen are held equally accountable. Each case has its own unique circumstances and facts that because of privacy may not always be publicly available."

The Capital was unable to verify that a new policy exists. When asked for redacted documents relating to cases resolved under Fowler, Carpenter said: "File another FOIA."

The newspaper submitted that FOIA request last week.

Some anecdotal evidence supports the claim of such a change.

A year ago, a junior was charged with raping a female midshipman in Bancroft Hall after a night of drinking. The male mid allegedly returned to the dorm, intoxicated and forced himself on the female mid in her bunk.

During the pretrial hearing, the alleged victim gave conflicting accounts of the incident, and became hostile when attorneys asked about the discrepancies. Fowler not only decided against referring the case for trial, but he allowed the man to continue as a midshipman, according to the mid's family and case documents.

A year earlier, men were being kicked out of the academy under similar circumstance, documents show.

While the academy did not provide documents for cases that have arisen during Fowler's tenure as superintendent, the commandant may have revealed a new policy when he granted an interview in October as part of a profile.

When asked about the possible double standard, Klunder, whose job equates to college dean, said everyone would be treated the same while he is in charge of daily operations.

"We are going to hold to our standards," he said. "If you do not achieve the standards we have established here, I am going to recommend you go away."

Full circle

Women were first admitted to the academy in 1976, and now make up about 20 percent of the 4,300-member Brigade of Midshipmen.

Sexual harassment at the academy first took center stage when some male mids celebrated Army-Navy Week in 1989 by chaining then-Midshipman Gwen Dreyer to a urinal and photographing her while they jeered.

Dreyer, a third-generation Naval Academy midshipman and a promising engineering student, was forced to drop out of the academy because of the scorn she encountered after reporting the incident.

Academy officials at the time insisted Dreyer had not been abused. Those same officials allowed Dreyer's assailant to remain enrolled at the academy.

Fifteen years later, the debate came full circle when claims of a new double standard surfaced widely during the Owens case. Owens was charged in 2007 with returning to the dorm intoxicated and forcing a female midshipman to have sex in her bunk.

A military jury acquitted Owens of rape and declined to recommend punishment after convicting him of violating an order and engaging in conduct unbecoming an officer. Rempt dismissed Owens from the school, and the Navy charged the quarterback about $91,000 for his education.

Owens' accuser was commissioned as a Navy officer, even though she and some of her friends testified to committing a litany of serious conduct violations - including binge drinking, abandoning a guard post and maintaining an off-base apartment.

The woman testified she had "blackouts" because of heavy drinking on the night of the alleged rape, and could not remember many details of the assault.

Owens' supporters, many of them academy graduates, were so upset by the case they paid his attorney fees and, later, tuition at the University of Maryland where he completed his degree. They also helped him repay the Navy for his academy education, and now are trying to win a presidential pardon for him.

'No easy answer'

In the wake of the Owens' case and complaints from alumni and others about a double standard of justice, the newspaper in March 2006 requested redacted documents for academy sex-abuse cases covering several years.

The last batch of documents obtained under FOIA arrived late last month, and the academy completed its response last week.

The newspaper's attorney last week also filed another appeal alleging "a deliberate campaign to wear down" the newspaper.

Meanwhile, the debate over granting immunity in sexual abuse cases at the Naval Academy continues, with no easy answers in sight. Some experts said granting women immunity is necessary.

Jackson Katz, founder and director of Mentors in Violence Prevention, which conducts training sessions for the military, defended the practice.

"The main things we are looking at is how to get women to come forward" to report sexual abuse, he said.

Katz said he was not familiar with the particular cases the newspaper examined, but said he thought the academy generally had good reasons for dismissing males who were accused of sexual abuse, even if criminal conduct could not be proved.

"Men charged and tried and acquitted nearly always say they were falsely accused," Katz said. He said mids are "high-status males" who should be held to high standards.

"He is already on a fast track for status and influence and power," Katz said of the typical male midshipman.

Katz said, however, the possibility of a double standard was a concern.

"If there is a case where a guy did nothing criminal, and he was dismissed because of the administrative infraction, such as underage drinking, that is a harsh treatment," he said.

Bernice Sandler, senior scholar at the Women's Research and Education Institute in Washington, D.C., and a key figure in designing Title IX, the 1972 law that banned discrimination in education and athletics, said granting female mids immunity from conduct offenses is essential in ferreting out sexual abuse.

"Look at what would happen if you didn't have the immunity - kick her (the victim) out, and there's not going to be another woman in the military who will report a rape," she said.

Sandler said she agreed the second part of the equation - throwing men out of the academy for the same conduct offenses - is also a serious concern.

"This is a really important issue," she said. "It is a difficult question without an easy answer."

But the pendulum can swing too far, a fact not lost on female mids.

"I've noticed a backlash for guys now," an unnamed female midshipman said in a recent Defense Department report on sexual abuse at the service academies. "It's too easy for a girl to say something (happened) that didn't happen. Girls are totally protected. It's almost like now the guys are the ones who have to be really cautious."